February 17, 2010

Quick Guide to Intellectual Property

by Jessica Holyoke

With all of the intellectual property stories going through the Herald lately, a quick reference guide is provided to our readers to understand what is going on.

COPYRIGHT: This is the art major. Copyright provides protection for works of art and literature, anything that is an expression of an idea. It provides a limited time monopoly for creators of certain works, such as music, both performed and sheet, books, magazines and programs. Currently, the lifetime of the author plus 70 years or 95 years if the work is owned by a corporation. Linden Lab respects your copyrights, even though you give them a license to copy your work throughout the Grid in order for people to be able to see your works. For the most part, copyrights do not apply to useful objects. In the U.S., ship hulls are an exception to this rule. You cannot copyright the idea itself, only how it is expressed. These are registered with the Copyright office in the U.S. and is the cheapest right to secure.

TRADEMARK: This is the business major. This provides identification of goods and services. It only lasts so long as the mark is used in commerce. At some point, Glisten will be available again for toothpaste for example. This includes the name, such as Nike, and specific symbols, such as the swoosh. It also includes the closely related TRADE DRESS which is the packaging is part of identifying the source of the goods or services in commerce, such as the Coca-Cola bottle. These are registered with the Trademark office and they start with the filing fees alone, no attorney, at $275 per class of good.

PATENT: This is the science major. This is for a thing or process that creates a useful and new end result. The monopoly is for less years than a copyright, 20 years in the U.S., but it is also extended to more inventions due to the doctrine of equivalents. Linden Lab does not respect your patent rights and if you use your patented method in SL then you give every other resident the right to use your patent in SL. You need to hire a patent agent or a patent attorney, someone who has passed the patent bar, in order to help you file the patent and submit it to the patent examiners in the Patent office.

So using our motorcycle example from a previous example, the motorcycle itself would be protected by trademark, so long as that design identifies the source of the goods, namely Harley Davidson. Unless the motorcycle contained some new process or invention, it would not be protected by a patent. If someone took a picture of the motorcycle, then that picture is protected by copyright. If someone made their model of the motorcycle off of the picture, then that would be a derivative work of the picture and infringing. If someone made their model off of the motorcycle, then no copyright would be infringed. If people thought the virtual model was from Harley Davidson itself, then there would be trademark infringement. If the bike had a special patent, there can be no patent violation because they would not perform the same functions or operate the same ways.

Got it?

Do not substitute this guide for your own attorney. If you have a specific question, please seek out an attorney as rules change in different jurisdictions.

10 Comments

there is nothing in secondlife that does not fall under copyright. It is all software. In addition to copyright the display of a trademark comes into play.

The laws are obsolete. There is no law about "special use content" such as what we have in Second Life. But with all the crap going on around privacy and WWIV (global cyberwar) going on right now I doubt anyone that matters gives a shit about 70,000 pervs masturbating to a video game enough to redo the laws.

Thanks for this post. Many of the blog and forum comments you see on IP issues tend to run all intellectual property into one fuzzy mess, and reach some very inaccurate conclusions as a result. If this post helps even just a few such people realize their error, that's a good thing.

A couple minor quibbles with your description of copyright:
1) It applies to far more works than just those that you would consider "artistic". Software is copyrightable, for example.
2) Registration is not necessary, and often not worth it. Any creative work you make is automatically protected by copyright, including your blog post and even my comment. Obviously you're not going to file a copyright registration for every blog post. The advantages of registering are that you get to claim statutory damages and attorneys fees instead of having to prove actual damages, and the registration serves as evidence that you were the original creator of the work, if there's some dispute about that fact.

This information is a quite limited view of intellectual property. First, it does not include much of state IP protections, nor does it cover trade secret law.
It also does not distinguish between WHAT is copyrightable/trademarked/or patented very clearly, but more importantly, it does not address HOW to bring an infringement claim and win. These are two very different things.
There are nine statutorily described categories of copyrightable material which answer WHAT can be copyrighted (opposed to when which occurs when the material has been reduced to a tangible form i.e. written down). Copyrights can be (and should be) registered.

Patents have 5 requirements before they are accepted by the PTO, and they must be approved and (patent must be issued) by the patent office (takes a few years or so)before they are effective. There are several types of patents including Bio/plant patents, design patents etc. In the above example, harley davidson would likely obtain a DESIGN patent over the shape of its motorcycle provided its shape meets the reqs.

Trademark is not necessarily a brand name. Trademark is anything that can be associated with a company or individual as having come from that source. Trademarks could be smells (think perfumes) colors (pro football teams) shapes aka trade dress (oakley sunglasses have a distinctive shape indicative of its source). Trademark is governed by the LANHAM act, and they can also be registered with the PTO. Harley davidson's motorcycle shape is more than likely trade dress. Though keep in mind, trademarks are only infringing if they create a LIKELIHOOD OF CONFUSION amongst the consumer. This is a complex test.

Intellectual property is a complex area of law which is still evolving, in the software area particularly. Software can be copyrighted, trademarked, held as a trade secret, and patented. Each type of protection addresses a different element of software, but there is some overlap. If you want to secure your interests, get an attorney to do it or brush up on it yourself. Getting a cease and desist letter, much less an infringement suit, thrown at you from a large corporation with deep pockets is a mighty large headache.

@ schmo - in order to sue on a copyright infringement claim, you must register. Registry also goes to PROVE that you have, in fact, created the material before the other guy.

**this information is NOT given nor intended as legal advice or opinion. It should not be relied upon in a legal capacity for ANY reason. If you wish to pursue an intellectual property or any legal claim, consult an attorney in your jurisdiction**

Not nearly so clear as that. In recent years, copyright holders of intellectual property have also insisted that they have to right to decide who can use their product, how they can use it, for what purpose, and that rights to use it can be revoked by the copyright holder.
To make things fuzzier -- because Linden Labs in the copyright holder of Second Life, they can contend that objects created inside their intellectual property hold only secondary rights to their primary rights as copyright holder. A loophole would be animations or objects created outside SL (sculpties) that are uploaded into Secondlife. These were created independently and held a copyright before they were uploaded into SL.
Linden Labs may insist on an applied agreement which is entered into during the uploading, but this is rather fuzzy.
NOT SO CLEAR, IS IT?

Did I forget to mention that this was a quick reference guide? Its not in the title up there? And the first paragraph? If I wanted to write a treatise on intellectual property for the Herald, it wouldn't have happened. This is a news site, not a legal resource. Again Quick guide.

But I do feel badly because Coco is right, I didn't mention the possibility of a design patent for the motorcycle. Its only available to new, original and ornamental design for an article of manufacture, must not be useful or functional, but is only available for 14 years. Which of course begs the question, if I make a computerized representation of a design patent, am I infringing on it? What I made would not be an article of manufacture. Egyptian Goddess v. Swisa Inc hinges on whether the accused infringing product looks substantially the same as the design patent protected one. I think it would be hard to confuse a computer generated model with a real life motorcycle.

Software is this whacky area though. The writing of the code is a writing, envisioned by copyright. But the code is useful so coders sometimes try to patent it. And I am fuzzy on the state of software patents right now, mostly because I am not touching patents with a ten foot pole.

You may notice in older video games, back before they had the status of Hollywood movies that modern firearms, while clearly identifiable, often used some variation of their well known name. For example the Desert Eagle was often referred to by its Israeli military designation (which eludes me at the moment)or as the Deagle or some other name that made it clear what it was without using the brand name. This was because those firearm manufacturers were not in a hurry to have digital representations identified with their producs without compensation. A friend who worked for a gaming company at the time explained it thusly -

If you make a movie and buy a Desert Eagle or a licensed prop gun you have a right to photograph it and to call it what it is. This is because it IS a Desert Eagle.

If, on the other hand, you make a perfect digital replica of a Desert Eagle, its still not a Desert Eagle. Its a digital model of a Desert Eagle that you made. So you can't say it IS a Desert Eagle unless the manufacturer allows you to. On the other hand, you can make it look a whole lot like one, which you couldn't do with a real firearm.

So, based on that insider understanding (granted many years old now), the patent on the form of a motorcycle is not impinged on by a digital representation of the same apparent shape. This is because digital representations don't really have a shape. The sticky wicket is if you make a digital representation that appears to be a recognizable item AND use the Trademark names assosicated with said item.

Of course these days its more likely that companies are lining up to pay for product placement rather than be paid for it in video games.

*This advice is not intended as professional legal advice. If you have serious questions, consult a lawyer. Not intended to diagnose, treat or prevent any conditions. The FDA has not approved this advice or tested its effectiveness. Keep out of reach of children. Do not take internally.

@Kanomi
What exactly do you think I "just made up?" I wrote the article, so in that way I created it. But everything in it is factual. If you want to say its made up, why don't you point out something that you don't believe is real?

@profoundlandish

And your description goes with the problem of mixing up trademarks, which would be the Desert Eagle name, and if we are talking about design patents, which would be ornamentation on the article of manufacture.